Form 1 NATIONAL RAILROAD ADJUSTMEPIT BOARD Award PIo. 8318
SECOND DIVISION Docket No. 8170
2-SPr-CM-'
80
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered,
( System Federation No. 114, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current Agreement, Carman D. A. VanDyne was unjustly
deprived of his rights and compensation when he was improperly
dismissed from service on March
15, 1978
after three years` service
with the Carrier; as a result of investigation held on March
7, 1978.
2. That accordingly, the Southern Pacific Transportation Company be
ordered to reinstate Caiman D. A. VanDyne to service at Los Angeles,
Carlifornia in accordance with the provisions of Rule 39, and that he
be made whole for all vacation rights, pension, benefits including
Railroad Retirement and Unemployment Insurance, and any other benefits
he would have earned during the time held out of service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employe or employer involved in this dispute
are
respectively
carrier and employe within the meaning of the Railway Labor Act
as approved June 21,
193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute. waived right of appearance at hearing thereon.
Cayman D. A. VanDyne was dismissed from service on March
15, 1979,
for
alleged acts of misconduct considered by carrier to be a violation of Rules
801
and 802, The pertinent parts of these rules read as follows
"Rule 801. Employees will not be returned in the service
who are .., insubordinate .., inanoral.'1
"Rule 802. Courteous deportment is required of all
employees in their dealing with ... each other ... vulgar
language is forbidden."
The record shows that the claimant was in the Carpenter Shop, waiting for
a carpenter to build him a stool that he could stand on while repairing a ladder
on a car. The claimant's foreman observed him in the Carpenter Shop and directed
Form 1 Award No.
837..8
Page 2 Docket No. 8170
2-S Pr-CM-'
80
him to return to work when he finished what he was doing. The foreman testified
that at this point, the claimant "gave him the finger", used obscene language,
unzipped his pants, and shook his penis at him. The claimant denies these
allegations.
The claimant asserts that the foreman approached him in the Carpenter Shop
and twice said to him, "Get your ass back to work". The record shaves that other
employees were in the vicinity of the incident. They were not present at the
hearings.
This case rests on the question of how one should weigh the foreman's word
against that of the claimant as to what was said and done. This board, however,
has stated on numerous occasions that it is not its function to decide issues of
credibility. The Board, in rendering a decision, mast confine itself to the
facts as contained in the record.
The record before us clearly reveals that both the foreman and the claimant
used improper language. To a degree, it could be argued that when the foreman
said to the claimant, "Get your ass back to work", he could expect a similar
statement in return. He could not expect, however, to have the claimant wave
his penis at him. Both parties to this incident acted improperly. But despite
the foreman's behavior, the Board cannot condone the actions of the claimant.
At the same time, in light of the facts of the case, we cannot uphold the
claimant's dismissal fxarn service. The claimant should be admonished for eccentric,,,Wr
behavior and put on notice that the use of similar language in the presence of
his supervisor or general disregard for company rules will surely result in his
discharge in the future. The claimant should also be aware that when he returns
to work, his time and attendance record should radically improve or additional
charges for these infractions could legitimately be brought against him.
A W A R D
The claimant shall be reinstated to his former job with no back pay.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
0semarie Brasch Administrative Assistant
m i Administrative s
Date at Chicago, Illinois, this 16th day of April, 1980,